COVID-19 has upended nearly every aspect of our lives. But while we may be able to avoid movie theatres and malls for a few months, our engagement with some institutions cannot — and should not — be suspended. One is the jury trial, which guarantees that criminal and civil defendants can make their case before their peers. The jury trial is enshrined as a right in the U.S. Constitution, and it is fundamental to how we understand justice.
Dozens of states have given themselves until June or later to decide how to proceed. There should be no ambiguity: it is imperative that jury trials continue and are improved to meet the unprecedented challenges associated with COVID-19. If done thoughtfully, we can create jury trials that are safer and less onerous for those who report for jury duty.
But how do we get there? To start, courts must dispense with crowded jury waiting rooms and jury selection proceedings that require jurors to sit side-by-side. One possible solution to crowding is allowing citizens with internet access to use computers and smartphones to view juror orientation materials at home. This would reduce the period of time people have to spend in the courthouse in close proximity to staff and other prospective jurors. When citizens do report to courthouses, those who do not have face coverings — along with all judges, courthouse staff, and attorneys—should be given masks. An Ohio judge who neglected this precaution for all of his jurors (despite donning a mask himself) was the focus of understandable consternation when a defendant tested positive for COVID-19.
In addition, the arrival times for summoned jurors should be staggered to avoid overcrowding or lengthy lines at security or in waiting rooms. Instead, once 10 jurors have checked in, all others should be invited to wait in empty courtrooms, at appropriately distanced chairs outside the courthouse, or in their cars. Jurors with cell phones should have the option of receiving a message or call when their physical presence is needed. Others should return to the jury room at a designated time to determine whether they can be excused for the day.
If the judiciary wishes to preserve lawyer-led jury selection practices, social distancing modifications must be implemented. Instead of packing together in a jury box during voir dire questioning — or a trial itself — seat prospective jurors throughout the gallery. Once empaneled, jurors seated in the jury box should be separated from each other—and from the witness stand and counsel’s table — by at least six feet, with additional designated seating throughout the courtroom. Breaks for empaneled jurors should be staggered throughout the day to reduce crowding in bathrooms or around vending machines. Jury deliberation should likewise take place in large spaces (e.g. closed off courtrooms) rather than a smaller conference room or lounge. As a precaution, extra alternate jurors should be empaneled to replace anyone who might fall ill.
It will be tempting to use video technology to facilitate jurors’ remote participation in deliberations or civil trials. Texas, for example, has been a leader in making virtual hearings and even a full-length virtual bench trial a reality. Though this would certainly permit highly-effective social distancing, consideration of its effectiveness must be weighed against the constitutionality of “trial by videoconference” and potentially serious issues of equity and access. Transitions to remote schooling have already highlighted Americans’ limited and differential access to computers and high-speed internet, which promote disparities along racial and socio-economic lines. To this end, and during a time of COVID-19, courts in the business of dispensing justice may also need to distribute loaner computers or iPads if the expectation, in civil cases at least, is that jurors tune in from their living rooms.
These changes would make jury trials safer. In cutting down unnecessary waiting and involving jurors only when necessary, they are also likely to make the experience of serving on a jury more pleasant and easier to balance with other responsibilities.
Much is uncertain at the moment. What is clear is that justice cannot wait for the end of a pandemic. And in the United States, doing justice requires strangers to congregate for the critical evaluation of evidence and arguments. Harnessing technology and medical expertise, the country can build a juror-friendly and pandemic-proof jury trial that safeguards everyone’s right to trial-by-jury.
Anna Offit is an assistant professor at SMU Dedman School of Law. Her research and teaching focus on criminal law, evidence, and criminal jury reform.